Richard Arlin Walker
Special to ICT
A federal court is reconsidering a lawsuit by Native American Church members seeking protection of birds they consider sacred and important to a ceremony near a creation site in San Antonio, Texas.
The Fifth Circuit Court of Appeals earlier this year ruled that plaintiffs Gary Perez and Matilde Torres and other church members have the right to access the site at the City of San Antonio’s Brackenridge Park. The city had fenced and closed the area. But the appellate court declined to rule on protection for cormorants (aquatic birds) being harassed by city contractors to keep them from nesting in trees the city wants to remove for riverfront improvements.
Perez and Torres asked the court to reconsider, citing religious freedom protections in the Texas State Constitution. The appellate court agreed on Aug. 28 to reconsider its earlier decision and asked the Texas Supreme Court for an interpretation of the constitutional provisions.
“I’m concerned about our peyote people here,” said Perez, principal chief of the Pakahua/Coahuiltecan peoples of Mexico and Texas. “If the Texas Administrative Code is there to help us, then I want this court’s ruling to help us too. I want our people all over the U.S. to understand their rights are protected within the state of Texas.”
The Texas Administrative Code protects the right of Native American Church members to use peyote in religious ceremonies. The state constitution protects against government interference “in matters of religion.” The constitution also says local and state governments “may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services.”
The question is, does the removal of trees and birds limit religious ceremony and worship? Perez and Torres say it does.
The site is near the Blue Hole, from which water gushed until the 1890s when the region’s burgeoning population began drawing down the aquifer. The spring is the headwaters of the San Antonio River.
According to the Coahuiltecan creation story, a spirit in the form of a blue panther lived in the Blue Hole. When a spirit in the form of a cormorant visited the Blue Hole, the blue panther scared the bird away. As the bird fled, water droplets from its tail scattered across the San Antonio River Valley, including what is now the park, spurring life in the region.
A riverbend, where ceremony takes place, mirrors the celestial constellation Eridanus and bridges the physical and spiritual worlds, Perez said. Certain religious ceremonies can be performed only at this riverbend.
According to the latest court record: “[T]his space’s capacity to function as a holy place relies on the presence of trees, birds, and other natural features, which are all part of its ‘spiritual ecology.’ Appellants also proclaim that certain religious ceremonies cannot be properly administered without specific trees present and cormorants nesting.”
Perez said the peyote pilgrimage there is documented on rock art dating back an estimated 4,000 years. According to that rock art, peyote pilgrimages were taking place there when the Bronze Age began, writing was invented, civilizations were developing in Mesopotamia, agriculture was spreading across Europe and Asia, and Egypt began rising in prominence.
Prayers and pyrotechnics
Brackenridge Park is 349 acres and has a golf course, museum, sports fields, walking trails, zoo, and an irrigation canal built during the Spanish colonial period.
City officials want to remove 48 heritage trees and relocate 19 others because, they claim, bird droppings pose a hazard to public health. The removal also factors into city plans to restore 90-year-old rock retaining walls along the river.
Perez and Torres say Native American Church ceremonies at the riverbend have been disrupted by city contractors firing blanks and using other noise makers to discourage cormorants and other migratory birds from nesting in trees the city wants to remove. The birds are protected by the Migratory Bird Treaty signed by Canada, Japan, Mexico, Russia and the United States. The trees can only be removed if migratory birds are not nesting in them.
“During our ceremony on June 21, before I even had a chance to speak into the morning sunrise, they were already shooting pyrotechnics behind us,” Perez said. “They had to have noticed that there were a bunch of cars around the sacred space area that the judge opened for us. And they had to have seen us in regalia, or at least the bright colors of our regalia. They had to have heard singing when they arrived at work that day. And they couldn’t wait. We had a permit all the way until 8:30 or 9 that morning and they were already firing them off before 7, before the sun came up.”
Perez said his lawyers sent the City of San Antonio a letter asking the contractors to refrain from using pyrotechnics while Native American Church adherents are present at the site. A U.S. District Court judge ruled in October 2023 that the city could not prevent the Native American Church from conducting ceremonies at the site, but it declined to prevent the city’s planned tree removal and bird deterrent measures. The Fifth District Court of Appeals is now reconsidering its decision upholding the District Court’s ruling based on Perez and Torres’s concerns for birds in the park.
A spokesperson for San Antonio Parks and Recreation told ICT on Aug. 15 the city is following guidelines established by the U.S. Department of Agriculture, which issued the permit for the use of pyrotechnics and other noise makers. The city also posts signage advising the public of noises that may be heard in the area.
“The public’s health and safety are prioritized,” the spokesperson said. “It is the USDA’s guidance and practice to avoid being in close proximity to the public.”
‘The gunfire makes my heart skip a beat’
Alesia Garlock, a San Antonio resident of Indigenous Mexican heritage, monitors bird activity at the park. She said city contractors have been “reckless” in their use of blanks and other pyrotechnics.
“We have video of them shooting over people and toward people in the park,” she said. “The other day, a friend’s daughter was walking there and [a contractor] was within probably three feet of her. She said that he looked at her – he looked at her and then he shot at a bird in a tree. It scared her and hurt her ears.”
Garlock said advocates raised the issue at a City Council meeting but were told by an assistant city manager that the bird deterrent efforts were not going to stop. ICT left a message on Aug. 12 with the San Antonio city manager’s office seeking comment. The call was not returned.
“I feel I have PTSD from all of this,” Garlock said. “The gunfire makes my heart skip a beat. It stresses me. I’m looking around like, you know, where’s the next shot going to come from?”
Garlock wants an assessment to ensure the trees’ removal doesn’t disturb cultural resources; she said an assessment is required under federal law but has not been done.
Perez and Garlock say the plans for Brackenridge Park continue a pattern of land use that conflicts with the natural order and values the city’s colonial history over its Indigenous history. The Brackenridge Park Conservancy, which manages the park for the city, states that there is evidence of Indigenous occupation and use of the area dating back 12,000 years.
Some of the features the city wants to restore are linked to dark periods in the city’s history. Indigenous people were forced by the Spanish to build the canal, or acequia. Nearby Lambert Beach, where the city wants to restore a century-old rock retaining wall and stairway, was once a Whites-only beach. The cormorants and other birds the city seeks to relocate away from the river have migrated there since time immemorial.
“The city is misrepresenting these birds to justify their removal.” Garlock said. “They say they have disease or they’re a health hazard. How are they a health hazard? You have to be under them or touching them or their poop to have anything.”
Garlock said tree removal doesn’t make sense in a city that averages – according to the National Weather Service – 22 days a year with triple-digit high temperatures. Summer 2023 was one of San Antonio’s hottest, with an average of 102.8 degrees over a two-month period.
The section of river that flows through Brackenridge Park is composed mostly of recycled water; swimming is not allowed, but Texas Parks and Wildlife stocks the river with channel catfish and rainbow trout and the park hosts a bass fishing tournament here.
Numb to the noise
Garlock predicts the effort to force the birds to relocate will be fruitless. Indeed, a 2016 report by the USDA states most birds become habituated to noise, “especially if the site being defended is highly attractive to the birds and the same style of pyrotechnics is used repeatedly.”
“They’re not going to just disappear,” Garlock said. “Every year, you’re going to have more people out there making noise and shooting over park users because the city doesn’t want birds in our park. That’s not realistic, and it’s not fair to the birds. They have rights too.”
The League of United Latin American Citizens approved a resolution in May calling for the city to end its policy of harassing migratory birds at Brackenridge and other city parks. Photographs taken by Garlock show some nests have eggs and chicks.
In response to an information request from ICT, the U.S Fish and Wildlife Service reported “the use of non-lethal methods to haze birds is allowed as long as there are no active nests, and the method of hazing does not kill or injure the birds. Active nests (with eggs or young) are protected by the Migratory Bird Treaty Act and cannot be destroyed or removed without a permit.”
The agency added, “There are many non-lethal methods available to property owners that can be used to deter birds, such as harassment, the use of pyrotechnics, use of predatory bird noise makers, use of artificial effigies, habitat modification (thinning trees) and others.”
An August 2017 report by USDA lists other deterrent methods such as electronic noise makers, bird distress calls, balloons resembling predators, and water spray devices.
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